The Judicial Committee of the Privy Council Decisions

Balfour v. Occupational Therapists Board [1999] UKPC 33 (21st July, 1999)

Mrs. Jennifer Ann Balfour Appellant

v.

The Occupational Therapists Board Respondent

FROM

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Delivered the 21st July 1999

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Present at the hearing:-

Lord Millett

[Delivered by Lord Millett]

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1. On 21st June 1999 at the conclusion of the hearing their Lordships agreed humbly to advise Her Majesty that the appeal should be dismissed, and that they would give their reasons later. This they now do.

 

2. Mrs. Balfour is a qualified Occupational Therapist. On 22nd January 1999 a Disciplinary Committee of the Occupational Therapists Board ("the Board") found her guilty of infamous conduct in a professional respect and directed that her name be removed from the Register ("the Register") maintained by the Board under the provisions of the Professions Supplementary to Medicine Act 1960 ("the Act"). The facts giving rise to the charges against her were as follows.

 

3. Mrs. Balfour holds a Diploma in Occupational Therapy granted in January 1966. Her name was duly entered on the Register on 25th January 1966. This entitled her to describe herself as a "State Registered Occupational Therapist".

 

4. The Board has statutory power to remove from the Register the name of any person who has failed after due warning to pay the annual fee prescribed for the retention of his or her name on the Register. The Register is brought up to date each year and the names of those who have failed to pay the annual fee are duly removed from the Register. At some stage between 1966 and 1993 Mrs. Balfour’s name was removed from the Register pursuant to these provisions.

 

5. In January 1993 Mrs. Balfour applied for her name to be re-admitted to the Register and paid the prescribed fee. Her application was granted and her name was duly re-admitted to the Register. She failed to pay the annual registration fee due in September 1994, and on 30th September 1994 her name was once more removed from the Register.

 

6. On 11th April 1995 Mrs. Balfour applied for the post of District Occupational Therapist (Eastern District) with the Wiltshire County Council. It was the policy of that Council, in common with other local authorities, to employ as occupational therapists only those whose names currently appeared on the Register. In her application form Mrs. Balfour falsely represented that she was a State Registered Occupational Therapist and gave her registration number. Her application was successful.

 

7. In the course of her employment Mrs. Balfour was responsible for the occupational therapists employed by the Council’s Eastern District. One of her duties was to ensure that their names were currently entered in the Register.

 

8. On 1st April 1997, following a reorganisation of local government, the Eastern District of Wiltshire County Council was brought within the area administered by Swindon Borough Council, and Mrs. Balfour became an employee of the Borough Council. In August or September 1997 one Avril Evans, the Council’s Assistant Chief Officer, discovered that Mrs. Balfour’s name was not currently entered on the Register. On three separate occasions Mrs. Evans instructed her to obtain re-registration as quickly as possible. After the third occasion of asking Mrs. Balfour applied for her name to be re-admitted to the Register. It was re-admitted on 30th September 1997.

 

9. Mrs. Evans initiated a disciplinary inquiry into Mrs. Balfour’s failure to obtain re-registration and Mrs. Balfour was suspended on full pay pending the outcome of the inquiry. At some date which is not recorded her employment by the Borough Council was terminated. She has since worked as an agency occupational therapist.

 

10. By a letter dated 3rd November 1998 Mrs. Balfour was notified that a meeting of the Disciplinary Committee of the Board would take place on 22nd January 1999 to inquire into the following charges against her:-

"That you being a State Registered Occupational Therapist are guilty of infamous conduct in a professional respect either individually or cumulatively in that

 

1. In an application form dated 11th April 1995 for the position of District Occupational Therapist with Wiltshire County Council you falsely declared that you were at that date a State Registered Occupational Therapist.

 

2. From 11th April 1995 to 30th September 1997 you failed to obtain state registration as an Occupational Therapist as was required by your employers."

 

11. Mrs. Balfour did not appear and was not represented at the hearing on 22nd January 1999. The Disciplinary Committee received evidence from two witnesses, Mrs. Harkin, the Registration Officer at the Council for Professions Supplementary to Medicine, and Mrs. Evans (Assistant Chief Officer for Swindon Borough Council). Mrs. Harkin confirmed that between September 1994 and September 1997 Mrs. Balfour’s name did not appear on the Register. Mrs. Evans gave evidence of Mrs. Balfour’s employment history. She confirmed that Mrs. Balfour had described herself as a State Registered Occupational Therapist in her application form, and produced the form which Mrs. Balfour had completed. She testified that registration on the Register was a requirement for all occupational therapists employed by the Council.

 

12. Although Mrs. Balfour did not appear before the Disciplinary Committee, she submitted a letter dated 21st January 1999 and enclosures as part of her case, and these were admitted in evidence by the Committee. In her letter she admitted that she had made a false declaration when applying for the post, but asked for certain mitigating circumstances to be taken into account. She submitted that there was no case to answer on the second charge because registration on the Register was not a requirement of her employment.

 

13. After retiring to consider its decision the Disciplinary Committee announced that, having taken account of all that had been put before it, it found both charges proved and determined that Mrs. Balfour’s name should be removed from the Register. Mrs. Balfour now appeals to their Lordships. It would seem from her petition that she appeals against sentence only, but in her Case she appears also to challenge the findings of the Disciplinary Committee. Their Lordships are willing to treat the appeal as an appeal against both conviction and sentence.

 

14. In her Case Mrs. Balfour she sets out at length the material which she placed before the Disciplinary Committee by way of mitigation. She acknowledges that she made a false statement in her application form, but states that this was not a deliberate lie but a genuine mistake. She states that since leaving the employment of Swindon Borough Council she has worked as an agency occupational therapist for Reading Social Services, who are aware of the position but wish her to continue to work for them. She concludes by submitting that she made a genuine mistake, that her conduct was neither disgraceful nor dishonourable, and that the penalty imposed is extreme.

 

15. Section 9(1)(b) of the Act provides that where a person is judged by the appropriate disciplinary committee to be guilty of infamous conduct in any professional respect it may, if it thinks fit, direct that the person’s name shall be removed from the Register. The expression "infamous conduct in a professional respect" employs somewhat archaic language and conveys a misleading impression that real wickedness is involved. As long ago as 1930 Scrutton L.J. said that it was a great pity that the word "infamous" was used to describe the conduct of a medical practitioner who advertised his services. He observed that such conduct was better described as "serious misconduct in a professional respect" and that this is all that is meant by "infamous conduct": see Rex. v. General Council of Medical Education and Registration of the United Kingdom [1930] 1 K.B. 562 at p. 569.

 

16. It has been settled law for more than a century that if it is shown that a medical man, in the course of his profession, has acted in a way which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency, it is open to his disciplinary body to find him guilty of "infamous conduct in a professional respect". Such a finding involves questions of fact and degree. The members of the Disciplinary Committee are the judges of the gravity of the offence. Their Lordships cannot substitute their opinion for theirs. They can intervene only where there is no evidence to support the Committee’s findings of fact, or where no reasonable Committee properly instructed on the law could regard the facts proved as constituting serious professional misconduct.

 

17. In June 1996 the Disciplinary Committee of the Board, acting in the performance of its duty under Section 9(6) of the Act and as guidance to the profession, published a statement of the kind of conduct which it considered to be "infamous conduct in a professional respect". Mrs. Balfour’s conduct was not of a kind mentioned in the statement. That is undoubtedly relevant, but it is not conclusive of the question. Section 9(6) expressly permits a finding that a person is guilty of infamous conduct in a professional respect by reference to matters not mentioned in such a statement. Their Lordships are satisfied that the Disciplinary Committee was entitled to take a serious view of Mrs. Balfour’s conduct. Her appeal against conviction must fail. It remains to consider her appeal against sentence.

 

18. The Disciplinary Committee has no power to impose a fine or issue a reprimand. It may postpone judgment for up to two years; but the only penalty it may impose is to order the removal of the offender’s name from the Register. By Section 9(5) of the Act a person whose name is removed from the Register in pursuance of a direction of a disciplinary committee is not entitled to have his or her name re-admitted to the Register again except by the direction of the committee on his or her application. Section 9(5) also authorises the committee to direct that no application for re-admission to the Register shall be made until the expiration of a specified period. No such direction was made in the present case.

 

19. Their Lordships consider that Mrs. Balfour’s deeply held belief that the penalty imposed on her was excessive is based on a misunderstanding. She is under the impression that her name has been permanently removed from the Register. No one has explained to her that she is free at any time to apply for her name to be re-admitted to the Register. Her registration has, in effect, been temporarily suspended but for an indefinite period. The severity of the penalty is mitigated by her right to apply to be restored to the Register.

 

20. The position is, perhaps, not entirely satisfactory, and not only from Mrs. Balfour’s point of view. Their Lordships cannot judge the severity of the penalty without knowing how long Mrs. Balfour’s name is to remain off the Register; while she has been given no indication how long she should wait before an application for restoration to the Register would not be summarily dismissed as premature. But their Lordships would not assume that the Disciplinary Committee will make an inappropriate response to a properly supported application, or that its secretariat would be unhelpful if Mrs. Balfour asked for guidance as to the appropriate time to make it.

 

21. It was for these reasons that their Lordships humbly advised Her Majesty that the appeal should be dismissed. In all the circumstances, they do not recommend that any order should be made for costs.